A Slap at Sex Stereotypes

By Andrea Sachs

When Ann Hopkins came up for partnership at Price Waterhouse in 1982, she looked like a shoo-in for a promotion. Of the 88 candidates -- all the others were male -- she had the best record at generating new business and securing multimillion-dollar contracts for the Big Eight accounting firm. Yet Hopkins' nomination was put on hold after she was evaluated by several male partners as being too "macho" and in need of a "charm school." One of them advised her to "walk more femininely, talk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry." Instead she quit the firm and filed a lawsuit under Title VII of the Civil Rights Act of 1964, which forbids employment discrimination because of a person's sex.

Last week, in a 6-to-3 ruling hailed by civil rights and women's advocates, the U.S. Supreme Court held that Price Waterhouse had based its decision in part on unlawful sexual stereotyping. Wrote Justice William Brennan in the lead opinion: "An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively and out of a job if they don't."

According to the court's ruling, the legal burden of proof shifts to Price Waterhouse. The firm must establish that it would have rejected Hopkins' partnership bid based on purely nondiscriminatory factors. "At this point," noted Justice Sandra Day O'Connor, "the employer may be required to convince the fact finder that, despite the smoke, there is no fire." The court's decision to shift the burden to the employer should make it easier for many employees to win Title VII cases, which also bar job discrimination on the basis of race, religion and national origin.

Hopkins, who is now a senior budget officer at the World Bank, declared herself "absolutely delighted" by the court's decision. "It's an important and significant win for women," said Marcia Greenberger, managing attorney of the National Women's Law Center in Washington. "This will make a real difference to women who are trying to rise to the top of their professions." A contrary ruling, said some scholars, would have meant an almost insurmountable burden of proof for many plaintiffs in employment cases.

But Price Waterhouse also had reason to celebrate. The court found that the firm had earlier been held to too high a standard of proof in rebutting Hopkins' claims. Thus, when the case is reheard in a lower federal court, Price Waterhouse's task will be somewhat less onerous. Instead of having to present "clear and convincing evidence" that it declined to promote Hopkins for nondiscriminatory reasons, the firm will only be required to back that claim with a "preponderance" of evidence -- a less rigorous standard.

The net result of the court's ruling, say legal experts, is that firms will be under pressure to root out bias among individuals making important personnel decisions. "The court is saying to employers they should examine their processes and make sure they have objective standards," says Douglas McDowell of the Equal Employment Advisory Council. "Supervisors must be properly trained to ensure that race and sex aren't part of the decision- making process." Such changes in attitude may already be under way at Price Waterhouse. Referring to the embarrassing publicity generated by this case, Kathryn Oberly, an attorney for Price Waterhouse, observes, "You couldn't have a better teaching example than to see the name of your firm in the newspaper for the past few years." Still, the firm has a way to go when it comes to women in top jobs. Even after the prolonged litigation, only 28 of Price Waterhouse's 900 current partners are women.

With reporting by Steven Holmes/Washington